About this case:

• Citation:
  [2026] NICA 5
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

Delivering judgment for Northern Ireland’s Court of Appeal, Lady Chief Justice Siobhan Keegan highlighted: “This decision will provide guidance on sentencing for section 18 assaults on young children in extreme circumstances.”

Mr McNeill KC appeared with Mr Quinn for Amanda Fulton instructed by McCrudden & Trainor Solicitors, Mr McMahon KC appeared with Mr Coulter for Christopher Fulton instructed by Andrew Russell & Co Solicitors, and Mr Hedworth KC appeared with Ms Cheshire for the Crown instructed by the Public Prosecution Service.

Background

On 7 November 2019, the first appellant contacted a GP about his newborn son having a sore throat and not feeding. Upon seeing the child, the GP arranged an urgent hospital transfer.

A CT scan revealed a skull fracture and bleeding, requiring emergency neurosurgery. The child was also discovered to have suffered severe traumatic brain injury, liver lacerations, 27 rib fractures arising from two occasions, fractures in both thigh and shin bones, retinal haemorrhages indicating shaking.

The first and second appellants were arrested when police were made aware of the child’s condition. Both claimed that the child had fed well before midnight on 6/7 November and then settled. They asserted that the child woke around 4:00am, and began refusing milk.

The couple denied knowing how the child sustained the injuries. The child was left with inter alia severe cerebral palsy affecting all limbs, severe blindness, severe intellectual disability and epilepsy.

The appellants were charged grievous bodily harm with intent (count 1), causing or allowing a child to suffer serious physical harm (count 2), cruelty to children on a date unknown between 5-8 November 2019 (count 3), and cruelty to children on a date unknown between 17 October and 2 November 2019 (count 4).

The first appellant was convicted of counts 1, 3 and 4, and was sentenced to 22 years in prison with five years on licence. The second appellant was convicted of counts 2 and 3, and sentenced to two years in prison with two years on licence.

The first appellant appealed his sentence, contending that the judge failed to identify a starting point for the headline offence and then imposed a greater sentence without offering a reason, imposed identical sentences for counts 3 and 4 despite the circumstances of offending differing, erred in imposing an extended licence at the maximum period available, and created injustice due to the disparity between the sentence imposed on the appellants on count 3.

The second appellant appealed her conviction, arguing that the trial judge misdirected the jury in relation to emotion of witnesses in stating inter alia that the presence or absence of emotion when giving evidence is not a reliable indication of whether a person is telling the truth or being accurate, and failed to remedy that misdirection in the context of a requisition prior to the retirement of the jury.

The Court of Appeal

Lady Chief Justice Keegan considered that in the case of the second appellant, the sole question was whether the jury were properly equipped to consider not just the emotional reaction of a woman, Ms McCook, who cried began to cry while giving evidence, but the emotional reactions of the second appellant.

The defence argued that the judge should have given a further direction on the second appellant’s evidence and should have expanded the direction in relation to assisting the jury on her demeanour or emotion when confronted by the injuries sustained by the child while at the hospital, arguing that the application of the standard direction was erroneous and undermined the central plank of the defence case, which was that she was an innocent party to the events which led to the child’s injury.

The court noted that the trial judge had been methodical in detailing all of the evidence including the demeanour of the appellants contemporaneous with the events, and prior to initially charging the jury, had invited submissions from counsel of what other legal direction should be given to the jury.

Remarking that the criticism now advanced, that there had been no prior discussion or agreement about any legal direction to the jury about the emotion of a witness or defendant, was unfair where the issue of emotions only arose during the judge’s discussion of Ms McCook’s evidence, the court observed that it “was open to the defence, having been sighted by the judge on the content of the charge, to ask the judge to specifically address the issue of demeanour contemporaneous to the events. However, the defence did not raise the specific issue that is now centre stage in this appeal.”

Having reviewed the applicable law, the Lady Chief Justice pointed out that specific directions on emotion are contained within the Crown Court Compendium and that the trial judge specifically stated during the requisition that this direction came directly from Compendium guidance.

The court opined that the case of R v BUV [2025] EWCA Crim 327 referenced in the October 2025 Compendium confirms the principle that a party can actively rely on demeanour observed outside the witness box and that there is a distinction to be made between demeanour while giving evidence and demeanour contemporaneous with the relevant events.

The court determined that, while it would have been better for the judge to deal with Ms McCook’s emotion by giving a further direction about contemporaneous displays of emotion by the second appellant, the judge did not intrude upon the role of the jury in assessing the quality of the evidence at trial and that the jury were well sighted on the significance or otherwise of both appellants’ demeanour contemporaneous to the events.

Accordingly, the second appellants’ appeal was dismissed and her convictions upheld as safe.

Turning to the first appellant’s appeal, the court noted that the prosecution accepted that R v Darren Fegan [2018] NICA 2 as the guideline case for grievous bodily harm with intent and observed that judges “may move outside of the range in appropriate circumstances. However, if moving outside range trial judges must say that they are moving outside the range.”

Finding no reason to revise the guidance provided by Fegan, the Lady Chief Justice recognised that the trial judge failed to properly explain a move outside the usual sentencing range of seven to 15 years, stated in Fegan, to 22 years.

The court pointed out that in the England & Wales guidelines for this offence, it is noted that “there can be a move outside the range where the harm is extreme, where there is extreme disability caused or in circumstances where there is an assault which leaves a child effectively nearing death”.

Adopting that approach for extreme cases arising in Northern Ireland, the Court of Appeal added to the guidance in Fegan to the effect that “judges are entitled to move outside the range when the facts of case require it and in an extreme category of case which involves offending against young children, sentences should be imposed greater than 15 years and nearer 20”.

Finding that the trial judge was entitled to reach a sentence of 18-20 years for this offence alone, the court also analysed the totality of the offences, noting: “Whilst the judge refers to totality, he does not deal with it in any detail which is unfortunate given totality guidance provided by this court in the case of R v Hutton [2024] NICA 19 at para [58].”

Highlighting that the judge did not explain his methodology, but in choosing 22 years, implicitly had in mind a sentence reflecting the totality of the offending, the court agreed with counsel for the first appellant that applying a seven-year sentence for additional abuse and cruelty was disproportionate with the four years applied to a similar charge to the second appellant.

Reducing the concurrent sentence to four years on counts 3 and 4, the court nonetheless considered that the trial judge was entitled to apply a consecutive sentence for counts 3 and 4 and found this methodology “a more attractive one”.

Accordingly, the court substituted 18 years on count 1 and consecutively four years for the other offences to reach the same result of an overall sentence of 22 years’ imprisonment.

Finally, the court refused to alter the licence period, noting that it is “not enough to say that the appellant is solely a risk to a small portion of the community, namely young children, because that underestimates the severity of the risk to one of the most vulnerable cohorts of our community”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeals.

The King v Christopher Fulton and Amanda Fulton [2026] NICA 5